Himachal Pradesh High Court
Bimla Devi vs State Of Himachal Pradesh on 6 December, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 2070 of 2019
Reserved on : November 29 , 2019
Date of Decision: December 6 , 2019
Bimla Devi ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Rajiv Jiwan, Senior Advocate with Mr. Ritesh Bhardwaj, Advocate, for the petitioner.
For the respondent : M/s. Anil Jaswal, Ashwani K. Sharma and Nand Lal Thakur, Additional Advocates General for the respondent/State.
Anoop Chitkara, Judge.
Upon arrest as a member of an unlawful cohort of orthodox villagers, who in furtherance of common object, smeared soot on the face of an old lady, garlanded her with shoes, broke her house-
hold articles along with idols of worship, on the superstition that she indulged in witchcraft, and also smeared soot on her middle-aged daughter, who came to her rescue, the accused has come up before this Court, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 22. The gist of the facts, apposite to adjudicate the present bail petition, traces its origin to the complaint dated Nov 9, 2019, scribed .
by Shri Ajay Kumar, a practicing Advocate. He informed the SHO of Police Station Sarkaghat, Distt. Mandi, H.P., that his mother-in-law is an old lady, and has two daughters. On Oct 17, 2019, the villagers misbehaved with her. Again, on Oct 29, 2019, villagers gathered and arrived at her house, broke open the doors, and threw away all the articles, including idols of worship. He stated that even on that date, he had made a complaint. He further mentioned that on Nov 6, 2019, the ladies and boys of the village administered beatings to his mother-in-law and sister-in-law. They also smeared their faces with soot and garlanded his mother-in-law with a string of shoes. They also made videography of all these acts and posted it on social media. After that, he named the accused persons and sought their prosecution.
3. Based on this information, Police Station Sarkaghat, Distt.
Mandi, registered in its file, FIR No. 184 of 2019, dated 9.11.2019, for the commission of offences punishable under Sections 147, 149, 454, 455, 435, 355, 427, 504, 506, 508, 323, 500, 380, 201,120B of IPC. The Police swiftly arrested the accused. As per the statement of Shri Nand Lal Thakur, Additional Advocate General for the State of ::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 3 Himachal Pradesh, the investigation is going on under the active supervision of the police officials of the highest ranks.
.
4. I have heard Mr. Rajiv Jiwan, learned Senior Counsel assisted by Mr. Ritesh Bhardwaj, Advocate, for the bail petitioner and M/s Anil Jaswal, Ashwani K. Sharma, and Nand Lal Thakur, learned Addl.
Advocates Generals, for the State of Himachal Pradesh. Sh.
Chander Paul Singh DySP was also present in Court, and he had produced the case file, which was perused and duly returned on Nov 30, 2019, through Shri Nand Lal Thakur, Additional Advocate General.
5. Mr. Rajiv Jiwan, learned Senior Counsel representing the accused submits that indisputably, the incident is dehumanizing.
Still, due to the intense pressure of social groups, it has become a media trial. He further contends that due to public demand, the Police roped in even those people, who were neither present in the mob nor played any role.
6. On the other hand, learned Addl. Advocates General have vehemently opposed the bail petition, stating that due to intense pressure of the accused, the victims even did not dare to report.
Referring to the status report of the Police, they pointed out that there is so much anger in the society and also amongst the members of the social organizations against the accused that in ::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 4 case the Court releases them on bail, their lives may be at risk. The status report reveals that this Court, in Writ jurisdiction, has taken .
cognizance of this matter, which is pending adjudication. The status report also shows that these people are so orthodox that they may repeat such kind of acts. Based on these submissions learned, Additional Advocates General asserted that none of these twenty-
four accused persons, who are in the judicial custody, deserve bail during the trial.
REASONING:
7. In this golden age, when the world is witnessing the information technology revolution, which owes gratitude to the hugely significant role and mental aptitude of Indians, reminding us of Srinivasa Ramanujan, Raja Ram Mohan Roy and Mahatma Buddha, got eclipsed with this hate crime. Perpetrators included a woman who had seen the first Sunrise of independent India and also the Constitutional commitment to profess scientific temper. What shocks is the presence of an eighteen years old millennial in the mob, undoubtedly, representing a small minority, floating in the direction reverse to his peers, who are our hopes. In between these two, there were around twenty-two more adults. The highly unethical behavior of these weird participants had no respect for human dignity, no love, and no self-respect.
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 58. The kind of fear, some of the accused had exonerated in the victims, reflects from the fact that the incident remained buried under .
the heaps of superstition, fear of deities, forgetting that here people worship more female Gods than the Male Gods. The accused not only committed offence with victims, and deities, but also with the society and the State, letting down all. Perhaps this isolated incident would not cast aspersions on the people of the region, who have an extremely positive mindset, and are rational thinkers.
9. Adherence to the Rule of Law is true Constitutional Dharma, where none loses her liberty, without following the procedure established by Law. Let these violators know the grace of our Constitution.
10. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
11. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 6(a) In the status report the Prosecution has alleged against the present bail petitioner Bimla Devi that she is .
involved in all offences except under Section 354 IPC, and that she was the one who had smeared soot on the face of victim.
(b) As per the Sections mentioned in FIR, the maximum sentence is of ten years of imprisonment, under Section 455 of IPC, which relates to lurking house-trespass, after preparation made for causing hurt, assault. Since no offence prescribes sentence for twenty years or life, as such, there would be different parameters to consider the plea of bail.
(c) The investigation is almost at the final stages of completion.
(d) The petitioner/accused is in judicial custody since Nov 10, 2019.
(e) The petitioner is a permanent resident of the address mentioned in the memo of parties, as such presence can always be secured.
(f) The petitioner has no criminal history.
12. Consequently, the present petition is allowed. The petitioner/accused shall be released on bail in the present case, in connection with the FIR mentioned above, on her furnishing personal bond in the sum of `10,000/- (rupees ten thousand) with two sureties in the like amount, to the satisfaction of the learned Trial Court/Chief Judicial Magistrate/Addnl. Chief Judicial Magistrate or any Judicial Magistrate of District Mandi, HP.
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 713. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, her family members, and .
of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.
14. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.
15. This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/accused undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:
a) The petitioner undertakes to attend the trial.
b) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
c) The petitioner shall co-operate in the investigation.
d) The petitioner shall not hamper the investigation.
e) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses,
f) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 8
g) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating .
officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
h) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than three years, within thirty days of knowledge of such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
i) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
j) The Petitioner shall not enter within a radius of five kilometers of the residence of both the victims, measuring from the shortest route, until the recording of the statements of all witnesses, except Police officials, during trial. In case the petitioner needs modification of this condition, then she may apply to this Court, supported with written permission from the victim, obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat, where the victim resides.
16. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP 917. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to .
these comments.
18. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order to the victims and explain it to them.
Petition stands allowed in the terms mentioned above.
Copy dasti.
r (Anoop Chitkara),
Judge.
December 6 , 2019 (PK)
::: Downloaded on - 06/12/2019 20:28:23 :::HCHP